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The Cyberlaw Podcast is back from hiatus – briefly! I've used the hiatus well, skiing the Canadian Ski Marathon, trekking through Patagonia, and having a heart valve repaired (all good now!). So when I saw (and disagreed with ) Orin Kerr's new book, I figured it was time for episode 502 of the Cyberlaw Podcast. Orin and I spend the episode digging into his book, The Digital Fourth Amendment: Privacy and Policing in Our Online World. The book is part theory, part casebook, part policy roadmap—and somehow still manages to be readable, even for non-lawyers. Orin's goal? To make sense of how the Fourth Amendment should apply in a world of smartphones, cloud storage, government-preserved Facebook accounts, and surveillance everywhere. The core notion of the book is “equilibrium adjustment”—the idea that courts have always tweaked Fourth Amendment rules to preserve a balance between law enforcement power and personal privacy, even as technology shifts the terrain. From Prohibition-era wiretaps to the modern smartphone, that balancing act has never stopped. Orin walks us through how this theory applies to search warrants for digital devices, plain view exceptions in the age of limitless data, and the surprisingly murky question of whether copying your files counts as a seizure. It's very persuasive, I say, if you ignore Congress's contribution to equilibrium. In some cases, the courts are simply discovering principles in the Fourth Amendment that Congress put in statute decades earlier. Worse, courts (and Orin) have too often privileged their idea of equilibrium over the equilibrium chosen by Congress, ignoring or implicitly declaring unconstitutional compromises between privacy and law enforcement that are every bit as defensible as the courts'. One example is preservation orders—those quiet government requests that tell internet providers to make a copy of your account just in case. Orin argues that's a Fourth Amendment search and needs a warrant, even if no one looks at the data yet. But preservation orders without a warrant are authorized by Congress; ignoring Congress's work should require more than a vague notion of equilibrium rebalancing, or so I argue. Orin is unpersuaded. We also revisit Carpenter v. United States, the 2018 Supreme Court decision on location tracking, and talk about what it does—and doesn't—mean for the third-party doctrine. Orin's take is refreshingly narrow: Carpenter didn't blow up the doctrine, but it did acknowledge that some records, even held by third parties, are just too revealing to ignore. I argue that Carpenter is the judiciary's Vietnam war – it has committed troops to an unwinnable effort to replace the third party rule with a doomed series of touchy-feely ad hoc rulings. That said, Orin's version of the decision, which deserves to be called the Kerr-penter doctrine, is more limited and more defensible than most of the legal (and judicial) interpretations over the last several years. Finally, we talk border searches, network surveillance, and whether the Supreme Court has any idea where to go next. (Spoiler: probably not.)
The Cyberlaw Podcast is back from hiatus – briefly! I've used the hiatus well, skiing the Canadian Ski Marathon, trekking through Patagonia, and having a heart valve repaired (all good now!). So when I saw (and disagreed with ) Orin Kerr's new book, I figured it was time for episode 502 of the Cyberlaw Podcast. Orin and I spend the episode digging into his book, The Digital Fourth Amendment: Privacy and Policing in Our Online World. The book is part theory, part casebook, part policy roadmap—and somehow still manages to be readable, even for non-lawyers. Orin's goal? To make sense of how the Fourth Amendment should apply in a world of smartphones, cloud storage, government-preserved Facebook accounts, and surveillance everywhere. The core notion of the book is “equilibrium adjustment”—the idea that courts have always tweaked Fourth Amendment rules to preserve a balance between law enforcement power and personal privacy, even as technology shifts the terrain. From Prohibition-era wiretaps to the modern smartphone, that balancing act has never stopped. Orin walks us through how this theory applies to search warrants for digital devices, plain view exceptions in the age of limitless data, and the surprisingly murky question of whether copying your files counts as a seizure. It's very persuasive, I say, if you ignore Congress's contribution to equilibrium. In some cases, the courts are simply discovering principles in the Fourth Amendment that Congress put in statute decades earlier. Worse, courts (and Orin) have too often privileged their idea of equilibrium over the equilibrium chosen by Congress, ignoring or implicitly declaring unconstitutional compromises between privacy and law enforcement that are every bit as defensible as the courts'. One example is preservation orders—those quiet government requests that tell internet providers to make a copy of your account just in case. Orin argues that's a Fourth Amendment search and needs a warrant, even if no one looks at the data yet. But preservation orders without a warrant are authorized by Congress; ignoring Congress's work should require more than a vague notion of equilibrium rebalancing, or so I argue. Orin is unpersuaded. We also revisit Carpenter v. United States, the 2018 Supreme Court decision on location tracking, and talk about what it does—and doesn't—mean for the third-party doctrine. Orin's take is refreshingly narrow: Carpenter didn't blow up the doctrine, but it did acknowledge that some records, even held by third parties, are just too revealing to ignore. I argue that Carpenter is the judiciary's Vietnam war – it has committed troops to an unwinnable effort to replace the third party rule with a doomed series of touchy-feely ad hoc rulings. That said, Orin's version of the decision, which deserves to be called the Kerr-penter doctrine, is more limited and more defensible than most of the legal (and judicial) interpretations over the last several years. Finally, we talk border searches, network surveillance, and whether the Supreme Court has any idea where to go next. (Spoiler: probably not.)
We reflect on the death of Justice Souter and sort out some loose ends from the last episode. We then dig into the Court's only opinion from Thursday, Barnes v. Felix, which we previewed with friend of the show Orin Kerr back in February at Stanford. Along the way we make a short detour into generative AI and it's potential for SCOTUS research. Most importantly, we react to the oral argument in Trump v. Casa, the shadow docket case that's about (or, isn't about?) President Trump's birthright citizenship executive order.
Sarah Isgur and David French discuss Chief Justice John Roberts' recent rebuke of President Donald Trump and the proper way to criticize a court's opinion. The Agenda: —Judicial independence and integrity —Orin Kerr and Michael C. Dorf debate —The “confusing” McDonnell Douglas framework —Parental due process rights —Age restrictions on the 2A —Free speech for professors —SCOTUS' lottery system Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices
Orin Kerr (Stanford Law) discusses his new book “The Digital Fourth Amendment: Privacy and Policing in Our Online World.”Topics include:The un-original Fourth AmendmentShould crooks just not carry smartphones?Do originalists cheat on the 4A?SCOTUS 4A rulings as equilibrium adjustmentContent vs. metadataThe mosaic theory (is unworkable)Applying the 4A to tomorrow's tech todayLinks:The Digital Fourth Amendment: Privacy and Policing in Our Online WorldTech Policy Podcast 368: How the Government Gets Your DataTech Policy Podcast 339: Will Tech Swallow the Fourth Amendment?Tech Policy Podcast 294: Border Searches of Digital Devices
Jack Goldsmith sits down with Orin Kerr, a Professor at Stanford Law School, to discuss his new book, “The Digital Fourth Amendment: Privacy and Policing in Our Online World.” They talk about how Kerr became interested in these issues, the history and physicality assumptions of the Fourth Amendment, and how and why the digital world is different. They also discuss how the courts are interpreting the Fourth Amendment in a digital age, as well as Kerr's Equilibrium-Adjustment Theory, the core theory of the book.To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/lawfare-institute.Support this show http://supporter.acast.com/lawfare. Hosted on Acast. See acast.com/privacy for more information.
The fourth amendment has protected privacy for Americans. But with new technologies, smart phones, the internet, and other devices, our protections are easily compromised. Will protecting privacy in the digital age require a new Digital 4th Amendment? We interview Orin Kerr author of The Digital Fourth Amendment: Privacy and Policing in our Online World [ … Continue reading Scholars' Circle – Author interview – The Digital Fourth Amendment: Privacy and Policing in our Online World – January 5, 2025 →
From June 15, 2021: A spree of stories has emerged over the last week or so that the Justice Department under the prior administration obtained phone and email records of several journalists, several members of Congress and staffers, and even family members. It has provoked a mini scandal, calls for investigation, howls of rage and serious questions. To discuss it all, Benjamin Wittes sat down with Gabe Rottman of the Reporters Committee for Freedom of the Press, former FBI agent Pete Strzok, Lawfare senior editor Quinta Jurecic and Berkeley law professor and Lawfare contributing editor Orin Kerr. They talked about what we really know about these stories and what happened in these investigations. Was it all legal? Was it legitimate? How should it be investigated and by whom? And what does it mean that none of the prior attorneys general or deputy attorneys general seem to remember it?To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/lawfare-institute.Support this show http://supporter.acast.com/lawfare. Hosted on Acast. See acast.com/privacy for more information.
Do judges have an important role to play in society beyond judging? Judge Lee Rudofsky takes the affirmative, while Orin Kerr disagrees in this special AO episode debating this topic. Sarah and David also discuss the latest SCOTUS cases. Show Notes: —Judges write letter saying they won't hire law clerks from Columbia —Kerr: Do Judges "Have an Important Role to Play in Our Society" Beyond Judging? —Code of Conduct for United States Judges —Staying Off the Sidelines: Judges as Agents for Justice System Reform —Appearances by Sitting U.S. Supreme Court Justices at Congressional Committee and Subcommittee Hearings (1960-2022) —Drops in Jewish enrollment in elite universities —CFPB v. Community Financial Services Association of America, Limited —Are tacos and burritos sandwiches? Learn more about your ad choices. Visit megaphone.fm/adchoices
From November 29, 2017: The Supreme Court heard oral arguments Wednesday in Carpenter v. United States, a major Fourth Amendment case asking whether a warrant is necessary before law enforcement can obtain cell site data identifying a suspect phone's location from a service provider. Lawfare contributor and Fourth Amendment expert Orin Kerr discussed the case with Benjamin Wittes at Brookings shortly after the argument.Support this show http://supporter.acast.com/lawfare. Hosted on Acast. See acast.com/privacy for more information.
From November 7, 2015: Last week, George Washington University and the CIA co-hosted an event entitled Ethos and Profession of Intelligence. As part of the conference, Kenneth Wainstein moderated a conversation between CIA General Counsel Caroline Krass, Orin Kerr, and Benjamin Wittes on Bridging 20th Century Law and 21st Century Intelligence, a panel which we now present in full. What new legal questions are raised by rapidly evolving technologies and how do those questions interact with existing national security law? In response to these changes, how can the United States strike a balance between privacy, security and the economic imperatives driving innovation? The panel addresses these critical issues and more.Support this show http://supporter.acast.com/lawfare. Hosted on Acast. See acast.com/privacy for more information.
On this day in legal history, President Richard Nixon fired folks to try to keep a lid on the Watergate scandal. Turns out, that doesn't work all that well. On October 20, 1973, the "Saturday Night Massacre" unfolded, marking a pivotal moment in the Watergate scandal and American legal history. Solicitor General Robert Bork, acting on orders from President Richard Nixon, fired Watergate Special Prosecutor Archibald Cox. This decision came after both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus refused to carry out the President's directive and subsequently resigned in protest.The firing was a dramatic response to Cox's insistence on obtaining tape recordings and other documents from the White House as part of his investigation into the Watergate break-in and subsequent cover-up. Nixon had offered a compromise of providing summaries of the tapes, but Cox rejected this offer, demanding the actual tapes. Nixon viewed Cox's refusal as a challenge to his authority, prompting the decision to have him removed.The event sent shockwaves through the legal community and the nation at large. It led to widespread public outcry, increased scrutiny of Nixon's actions, and a hastening of impeachment proceedings against the President. The episode also raised important questions about the rule of law, executive power, and the constitutional system of checks and balances.Critically, the Saturday Night Massacre also impacted the Office of the Solicitor General, an institution traditionally seen as independent and non-political. Bork's role in the firing cast a shadow over his later career, including his failed nomination to the Supreme Court in 1987. Overall, the incident remains a seminal moment in legal history, serving as a cautionary tale about the limits of executive power and the importance of judicial and legal independence–or the hazards of a lack thereto. Right-wing conspiracy theorist Alex Jones has been ruled to still face $1.1 billion in defamation judgments related to his false claims about the Sandy Hook Elementary School shooting, despite filing for bankruptcy. Judge Christopher M. Lopez of the U.S. Bankruptcy Court for the Southern District of Texas decided that the debt could not be discharged under bankruptcy law because state courts in Texas and Connecticut had found Jones' actions to be intentional and malicious. The decision addresses a key question surrounding the bankruptcy case: whether Jones would be able to avoid making full payments to the families of the shooting victims.Judge Lopez rejected Jones's argument that the court did not have to honor the state court default judgment orders or the resulting damage awards. While Jones can appeal, he remains liable for most of the judgments, unless a settlement is reached. In a second ruling, Lopez allowed that Jones could relitigate some of the amount he must pay in another Sandy Hook-related case involving a smaller sum. Jones had filed for personal bankruptcy in December, following financial liability judgments in Texas and Connecticut. His Infowars parent company, Free Speech Systems LLC, had filed for Chapter 11 protection in July 2022.The judgments against Jones were default decisions, as he had failed to respond to discovery orders. Jones had argued that the state court findings were insufficient to establish "willful and malicious injury" because they were default judgments. Nonetheless, Judge Lopez affirmed that the defamation liability met the criteria for "willful and malicious injury," rendering it non-dischargeable in bankruptcy.Alex Jones Bankruptcy Judge Backs $1 Billion Sandy Hook Debt (1)Senate Democrats, led by Sen. Sheldon Whitehouse (D-R.I.), have unveiled a bill that proposes term limits on Supreme Court justices as part of an effort to address concerns about the conservative leanings of the court. The legislation comes amid increased scrutiny following reports that some justices have accepted large gifts from Republican donors without disclosure. The bill is unlikely to advance in the Senate, where Republican opposition has stymied similar Democratic-led initiatives. Senate Judiciary Chair Dick Durbin (D-Ill.) noted that there is “no indication” that Republicans are interested in supporting such legislation.The bill proposes that presidents would be able to appoint a new Supreme Court justice every two years. However, only the nine most recently appointed justices would regularly hear federal appeals court cases, which make up the majority of the Supreme Court's caseload. Justices appointed more than 18 years ago would hear cases that fall under the Supreme Court's original jurisdiction, like disputes between states, and could serve as alternates in appellate cases when needed.The legislation would only take effect in the next presidential term after becoming law. This new bill resembles a previous one from Whitehouse, which also proposed an 18-year term limit but used a different mechanism, forcing justices into a less active, senior status after 18 years. Unlike the previous bill, this one preserves lifetime tenure for justices by allowing them to hear original jurisdiction cases and maintain other powers after 18 years.New Supreme Court Term Limit Bill Unveiled by Senate DemocratsSpeaker candidate Jim Jordan (R-Ohio) proposed doubling the state-and-local tax (SALT) deduction cap from $10,000 to $20,000 in an attempt to gain the support of moderate New York Republicans. The offer was backed by Ways and Means Chair Jason Smith (R-Mo.) and would have been part of an end-of-year tax package. However, the deal was not accepted, according to California Republican Mike Garcia. New York Republicans Andrew Garbarino, Nick LaLota, Anthony D'Esposito, and Mike Lawler have twice voted against Jordan, emphasizing the need for the next House Speaker to be open to raising the SALT cap.LaLota stressed that the speaker candidate should understand the importance of the SALT issue. Garcia said the proposed cap of $20,000, or $40,000 for joint filers, would be a win for SALT Republicans. Despite this, no formal deal has been made. Jordan encouraged continued negotiations on SALT, aiming to reach a consensus beneficial to the entire GOP conference.The impasse over the SALT cap is currently stalling a GOP tax package, as several Republicans from high-tax states refuse to move forward without a provision for raising the SALT deduction limit. This threatens bipartisan tax package efforts, which have been a focus of business lobbyists this season.Jordan Negotiates on SALT in Attempt to Win Over NY RepublicansFederal prosecutors have stated that former U.S. President Donald Trump is not immune from criminal charges related to his attempts to overturn the 2020 presidential election results. In a court filing, Washington prosecutors argued that neither constitutional provisions nor historical practice grants absolute immunity from criminal prosecution to a former president. Trump, who is currently the frontrunner for the 2024 Republican presidential nomination, had claimed in legal filings that his actions during his presidential term from 2017 to 2021 provide him with sweeping immunity from criminal charges.Trump was charged in August with four felony counts for attempting to interfere in vote counting and block the certification of the 2020 election, which he lost to President Joe Biden. Trump's lawyers argued in an October 5 court filing that he can't be prosecuted for these actions, stating they were aimed at ensuring "election integrity" and were part of his "official responsibilities as President." The case is among four criminal prosecutions Trump faces as he attempts to make a political comeback and regain the White House.Trump not immune from criminal charges in 2020 election case, prosecutors say | ReutersSidney Powell, a former lawyer for Donald Trump, pleaded guilty to aiding Trump's efforts to overturn the results of the 2020 presidential election in Georgia. Powell pleaded guilty to six counts of conspiracy to commit intentional interference with performance of election duties, a misdemeanor. She has agreed to testify against Trump and the other 16 co-defendants if prosecutors request her testimony. The Georgia case is one of four criminal cases Trump currently faces, two of which focus specifically on his attempts to overturn his election loss.Powell's plea comes just before her scheduled trial on charges that include racketeering and conspiracy to commit election fraud. As part of her plea agreement, she is expected to be sentenced to six years of probation. Powell admitted to plotting to unlawfully access secure election machines in Coffee County, Georgia, in January 2021.The guilty plea represents a significant win for Fulton County District Attorney Fani Willis, as it means her team gains the cooperation of a key figure in Trump's efforts to contest the election. Prosecutors claim that Powell and other co-defendants tampered with electronic ballot markers and accessed data from Dominion Voting Systems, a claim that Powell and other Trump allies had falsely made against the company. If Kenneth Chesebro, another lawyer tied to Trump, proceeds to trial, it could offer Trump's legal team insights into the prosecution's case against him.Ex-Trump lawyer Sidney Powell pleads guilty, could testify in Georgia case | ReutersThe Law School Admission Council announced that it will remove the "logic games" section from the Law School Admission Test (LSAT) starting in August 2024. This section, officially known as analytical reasoning questions, has been a contentious part of the exam since its inclusion in 1982. The council plans to replace these games with more logical reasoning questions, which already exist on the test. Reactions from lawyers and law students are mixed, ranging from approval to disappointment. UC Berkeley law professor Orin Kerr supported the decision, stating that logic games do not adequately test the skills necessary for legal practice. Conversely, Yale Law School professor Taisu Zhang argued that the games add an enjoyable and relevant component to the test.The decision to remove the logic games section comes after a 2019 settlement with two blind LSAT takers who argued that the section was not accessible to them and violated the Americans with Disabilities Act. The council had four years to make revisions based on this settlement. Some LSAT tutors have said that the logic games section provides the best opportunity for test-takers to improve their scores because it is highly teachable through practice. Supporters of keeping the section argue that it tests skills relevant to legal practice and demonstrates a candidate's willingness to work hard.LSAT's elimination of 'logic games' prompts jeers, cheers | Reuters Get full access to Minimum Competence - Daily Legal News Podcast at www.minimumcomp.com/subscribe
UC Berkeley law professor Orin Kerr joins David and Sarah to explain how Fourth Amendment jurisprudence applies to a digital age. Do you have an expectation of privacy online? Can terms of services null your right against unreasonable searches and seizures? But first Sarah generously offers David time to rant about certain legal takes surrounding Trump's most recent indictment. Plus: -David's (recent) paintball career -What is general public use? -Are pole cameras unconstitutional? Show notes- -Section 241 and the First Amendment in the Duke Law Journal -Professor Kerr's profile at Berkeley Law -Professor Kerr's Twitter profile -Professor Kerr's writing for The Volokh Conspiracy Learn more about your ad choices. Visit megaphone.fm/adchoices
Stanford's Evelyn Douek and Alex Stamos weigh in on the latest online trust and safety news and developments:Senators Chris Coons, Rob Portman, Amy Klobuchar, and Bill Cassidy introduced the Platform Accountability and Transparency Act (PATA) on Wednesday. The Bill would give researchers at universities and nonprofit organizations in the U.S. access to study data from the largest social media companies and provide public transparency on the most widely shared posts, advertising, content moderation practices and recommendation algorithms. - John Perrino / Tech Policy PressMore: Nate Persily puts in a cameo appearance to explain the bill and its history. Nate has been working on platform transparency for years. - Tara Wright / SLS NewsAn internal investigation by ByteDance, TikTok's parent company, found that employees tracked the location and user data of multiple journalists, in an attempt to identify leakers at the company - Emily Baker White / Forbes More: One of the reporters who was tracked, Emily Baker White, has a good toot-thread of the reporting on the company that she has done over the past year that led to her being tracked. - Emily Baker White / MastodonThe password manager LastPass dropped a lovely Christmas present on its users, announcing a major security breach. Yikes. - Karim Toubba / LastPassOver at Twitter:Musk is still CEO.No, the US Government is not paying Twitter millions of dollars to censor information (Musk on Twitter). It reimburses the company for the costs of complying with orders to hand over data under the Stored Communications Act. - 18 U.S. Code § 2703, § 2706The Twitter Files finally had some interesting reporting about US Government covert information operations. - Lee Fang / The InterceptNo, it's not news that platforms struggled with content moderation during the pandemic and often made mistakes. Yes, there should be a proper review of content moderation during the pandemic. - David Zweig / TwitterElon Musk has a worrying lack of understanding of Twitter's data security obligations. - Faiz Siddiqui / Washington PostHere's a primer of what he should know and why he should be worried Moderated Content prepared earlier - “Elon puts rockets into space, he's not afraid of the FTC”And for Orin Kerr's take on why he really, really shouldn't share people's DMs, listen to MC Weekly Update 12/12Everything has a content moderation angle – Leo Messi's post celebrating his world cup win has become the most-liked Instagram post of all time. - Dan Ladden-Hall / The Daily BeastJoin the conversation and connect with Evelyn and Alex on Twitter at @evelyndouek and @alexstamos.Moderated Content is produced in partnership by Stanford Law School and the Cyber Policy Center. Special thanks to John Perrino for research and editorial assistance.Extra special thanks this week to the production team, Brian Pelletier, Alyssa Ashdown and Ryan Roberts for making sure this reached you during winter shutdown.Like what you heard? Don't forget to subscribe and share the podcast with friends!
The Justice Department recently announced the issuance of a revised internal policy for charging cases brought under the Computer Fraud and Abuse Act (CFAA), our nation's main computer crime statute. This revised policy was issued in the wake of the Supreme Court case of United States v. Van Buren, which held that the CFAA's “exceeds authorized access” provision does not cover those who have improper motives for obtaining information that is otherwise available to them. Additionally, the new DOJ policy for the first time directs federal prosecutors that good-faith security research should not be charged under the CFAA, but also acknowledges that claiming to be conducting security research is not a free pass for those acting in bad faith.Does the new DOJ charging policy strike a reasonable balance between privacy and law enforcement interests? Do its protections for security research go far enough, or do they extend too far? In the wake of Van Buren and this policy, does the federal government have adequate tools to address insider threats, especially where such threats are focused on invasions of privacy and confidentiality instead of being motivated by financial gain?Join us as our panel of experts break down these questions.Featuring:--Prof. Orin Kerr, Willam G. Simon Professor of Law, University of California, Berkeley School of Law --Prof. Michael Levy, Adjunct Professor of Law, Penn Carey Law, University of Pennsylvania --[Moderator] John Richter, Partner, King & Spalding
A federal judge ordered the appointment of a special master to review the sensitive documents seized at Mar-a-Lago. Orin Kerr, law professor at the University of California, Berkeley, joins Sarah to break down the ruling. Then, Sarah is joined by Thomas Lee, former associate chief justice of the Utah Supreme Court, for another discussion of corpus linguistics. Show Notes:-A Corpus Linguistic Analysis of 'Foreign Tribunal'-Corpus Juris Advisors-Judging Ordinary Meaning-Data-Driven Originalism
Retraction: An earlier episode of the Cyberlaw Podcast may have left the impression that I think Google hates mothers. I regret the error. It appears that, in reality, Google only hates Republican mothers who are running for office. But to all appearances, Google really, really hates them. A remarkable, and apparently damning study disclosed that during the most recent federal election campaign, Google's Gmail sent roughly two-thirds of GOP campaign emails to users' spam inboxes while downgrading less than ten percent of the Dems' messages. Jane Bambauer lays out the details, which refute most of the excuses Google might offer for the discriminatory treatment. Notably, neither Outlook nor Yahoo! mail showed a similar pattern. Tatyana thinks we should blame Google's algorithm, not its personnel, but we're all eager to hear Google's explanation, whether it's offered in the press, Federal Election Commission (FEC), in court, or in front of Congressional investigators after the next election. Jordan Schneider helps us revisit China's cyber policies after a long hiatus. Things have NOT gotten better for the Chinese government, Jordan reports. Stringent lockdowns in Shanghai are tanking the economy and producing a surprising amount of online dissent, but with Hong Kong's death toll in mind, letting omicron spread unchecked is a scary prospect, especially for a leader who has staked his reputation on dealing with the virus better than the rest of the world. The result is hesitation over what had been a strong techlash regulatory campaign. Tatyana Bolton pulls us back to the Russian-Ukrainian war. She notes that Russia Is not used to being hacked at anything like the current scale, even if most of the online attacks are pinpricks. She also notes Microsoft's report on Russia's extensive use of cyberattacks in Ukraine. All that said, cyber operations remain a minor factor in the war. Michael Ellis and I dig into the ODNI's intelligence transparency report, which inspired several differed takes over the weekend. The biggest story was that the FBI had conducted “up to” 3.4 million searches for U.S. person data in the pool of data collected under section 702 of the Foreign Intelligence Surveillance Act (FSA). Sharing a brief kumbaya moment with Sen. Ron Wyden, Michael finds the number “alarming or meaningless,” probably the latter. Meanwhile, FISA Classic wiretaps dropped again in the face of the coronavirus. And the FBI conducted four searches without going to the FISA court when it should have, probably by mistake. We can't stay away from the pileup that is Elon Musk's Twitter bid. Jordan offers views on how much leverage China will have over Twitter by virtue of Tesla's dependence on the Chinese market. Tatyana and I debate whether Musk should have criticized Twitter's content moderators for their call on the Biden laptop story. Jane Bambauer questions whether Musk will do half the things that he seems to be hinting. I agree, if only because European law will force Twitter to treat European sensibilities as the arbiter of what can be said in the public square. Jane outlines recent developments showing, in my view, that Europe isn't exactly running low on crazy. A new court decision opens the door to what amounts to class actions to enforce European privacy law without regard for the jurisdictional limits that have made life easier for big U.S. companies. I predict that such lawsuits will also mean trouble for big Chinese platforms. And that's not half of it. Europe's Digital Services Act, now nearly locked down, is the mother lode of crazy. Jane spells out a few of the wilder provisions – only some of which have made it into legal commentary. Orin Kerr, the normally restrained and professorial expert on cyber law, is up in arms over a recent 9th Circuit decision holding that a preservation order is not a seizure requiring a warrant. Michael, Jane, and I dig into Orin's agita, but we have trouble sharing it. In quick hits: Jane looks at a report expressing shock that Amazon uses data from Alexa smart speakers pretty much exactly the way you'd expect it to. Michael and I unpack the latest move in the prosecution of Uber's former Chief Security Officer, Joe Sullivan. Jane lays out what's different in Colorado‘s new privacy law. Spoiler: Just enough to make the likelihood of a federal privacy law with preemption look good to business. Michael and I wish the Biden administration well in its effort to get much-needed new authorities to address the risks of drone attacks here at home. Download the 405th Episode (mp3) You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
Retraction: An earlier episode of the Cyberlaw Podcast may have left the impression that I think Google hates mothers. I regret the error. It appears that, in reality, Google only hates Republican mothers who are running for office. But to all appearances, Google really, really hates them. A remarkable, and apparently damning study disclosed that during the most recent federal election campaign, Google's Gmail sent roughly two-thirds of GOP campaign emails to users' spam inboxes while downgrading less than ten percent of the Dems' messages. Jane Bambauer lays out the details, which refute most of the excuses Google might offer for the discriminatory treatment. Notably, neither Outlook nor Yahoo! mail showed a similar pattern. Tatyana thinks we should blame Google's algorithm, not its personnel, but we're all eager to hear Google's explanation, whether it's offered in the press, Federal Election Commission (FEC), in court, or in front of Congressional investigators after the next election. Jordan Schneider helps us revisit China's cyber policies after a long hiatus. Things have NOT gotten better for the Chinese government, Jordan reports. Stringent lockdowns in Shanghai are tanking the economy and producing a surprising amount of online dissent, but with Hong Kong's death toll in mind, letting omicron spread unchecked is a scary prospect, especially for a leader who has staked his reputation on dealing with the virus better than the rest of the world. The result is hesitation over what had been a strong techlash regulatory campaign. Tatyana Bolton pulls us back to the Russian-Ukrainian war. She notes that Russia Is not used to being hacked at anything like the current scale, even if most of the online attacks are pinpricks. She also notes Microsoft's report on Russia's extensive use of cyberattacks in Ukraine. All that said, cyber operations remain a minor factor in the war. Michael Ellis and I dig into the ODNI's intelligence transparency report, which inspired several differed takes over the weekend. The biggest story was that the FBI had conducted “up to” 3.4 million searches for U.S. person data in the pool of data collected under section 702 of the Foreign Intelligence Surveillance Act (FSA). Sharing a brief kumbaya moment with Sen. Ron Wyden, Michael finds the number “alarming or meaningless,” probably the latter. Meanwhile, FISA Classic wiretaps dropped again in the face of the coronavirus. And the FBI conducted four searches without going to the FISA court when it should have, probably by mistake. We can't stay away from the pileup that is Elon Musk's Twitter bid. Jordan offers views on how much leverage China will have over Twitter by virtue of Tesla's dependence on the Chinese market. Tatyana and I debate whether Musk should have criticized Twitter's content moderators for their call on the Biden laptop story. Jane Bambauer questions whether Musk will do half the things that he seems to be hinting. I agree, if only because European law will force Twitter to treat European sensibilities as the arbiter of what can be said in the public square. Jane outlines recent developments showing, in my view, that Europe isn't exactly running low on crazy. A new court decision opens the door to what amounts to class actions to enforce European privacy law without regard for the jurisdictional limits that have made life easier for big U.S. companies. I predict that such lawsuits will also mean trouble for big Chinese platforms. And that's not half of it. Europe's Digital Services Act, now nearly locked down, is the mother lode of crazy. Jane spells out a few of the wilder provisions – only some of which have made it into legal commentary. Orin Kerr, the normally restrained and professorial expert on cyber law, is up in arms over a recent 9th Circuit decision holding that a preservation order is not a seizure requiring a warrant. Michael, Jane, and I dig into Orin's agita, but we have trouble sharing it. In quick hits: Jane looks at a report expressing shock that Amazon uses data from Alexa smart speakers pretty much exactly the way you'd expect it to. Michael and I unpack the latest move in the prosecution of Uber's former Chief Security Officer, Joe Sullivan. Jane lays out what's different in Colorado‘s new privacy law. Spoiler: Just enough to make the likelihood of a federal privacy law with preemption look good to business. Michael and I wish the Biden administration well in its effort to get much-needed new authorities to address the risks of drone attacks here at home. Download the 405th Episode (mp3) You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
This week, Alan, Quinta and Scott talked amongst themselves about some of the week's big national security news stories, including:“What's in a Name?” Observers of the war in Ukraine are increasingly turning to a controversial term to describe the actions of Russian forces: genocide. Why are people suddenly using this word? Is its use appropriate here?“Who's Afraid of Going Dark?” A recent expose has gone deep into the struggle between big tech companies and NSO Group, the Israeli hacking company that has provided various governments around the world with the ability to access users' phones and other protected communications. What does this tell us about the future of communications security and the role of companies like NSO Group in it.“Florida Woman Disputes Sanitation Standards.” A federal judge in the Middle District of Florida has adopted an extremely narrow reading of federal law to hold that the Biden administration lacks the legal authority to require individuals to wear masks on airplanes and other transportation systems. What does this holding tell us about where the legal debate around pandemic measures is headed?For object lessons, Alan endorsed his new favorite Norwegian time travel cop show. Quinta shouted out a piece in G. Elliot Morris's substack on why the Democrats are screwed and what can (and can't) be done about it. And Scott urged listeners to check out musician Margaret Glaspy, who he recently saw live and brings a rocky vibe and charmingly awkward dance moves to the singer-songwriter motif.Here are a few other articles and items we discussed, in no particular order:Alan's recent Lawfare Podcast interview with law professors Orin Kerr and Asaf Lubin regarding the WhatsApp v. NSO Group lawsuit;Hersch Lauterpacht's 1947 treatise “Recognition in International Law,” which is currently living on Scott's bedside table. Be sure to visit our show page at www.lawfareblog.com and to follow us on Twitter at @RatlSecurity. And Rational Security listeners can get a committed ad-free feed by becoming a Lawfare material supporter at www.patreon.com/lawfare! See acast.com/privacy for privacy and opt-out information.
A special reminder that we will be doing episode 400 live on video and with audience participation on March 28, 2022 at noon Eastern daylight time. So mark your calendar and when the time comes, use this link to join the audience: https://riverside.fm/studio/the-cyberlaw-podcast-400 See you there! For the third week in a row, we lead with cyber and Russia's invasion of Ukraine. Paul Rosenzweig comments on the most surprising thing about social media's decoupling from Russia—how enthusiastically the industry is pursuing the separation. Facebook is allowing Ukrainians to threaten violence against Russian leadership and removing or fact checking Russian government and media posts. Not satisfied with this, the EU wants Google to remove Russia Today and Sputnik from search results. I ask why the U.S. can't take over Facebook and Twitter infrastructure to deliver the Voice of America to Facebook and Twitter users who've been cut off by their departure. Nobody likes that idea but me. Meanwhile, Paul notes that The Great Cyberwar that Wasn't could still make an appearance, citing Ciaran Martin's sober Lawfare piece. David Kris tells us that Congress has, after a few false starts, finally passed a cyber incident reporting bill, notwithstanding the Justice Department's over-the-top histrionics in opposition. I wonder if the bill, passed in haste due to the Ukraine conflict, should have had another round of edits, since it seems to lock in a leisurely reg-writing process that the Cybersecurity and Infrastructure Security Agency (CISA) can't cut short. Jane Bambauer and David unpack the first district court opinion considering the legal status of “geofence” warrants—where Google gradually releases more data about people whose phones were found near a crime scene when the crime was committed. It's a long opinion by Judge M. Hannah Lauck, but none of us finds it satisfying. As is often true, Orin Kerr's take is more persuasive than the court's. Next, Paul Rosenzweig digs into Biden's cryptocurrency executive order. It's not a nothingburger, he opines, but it is a process-burger, meaning that nothing will happen in the field for many months, but the interagency mill will begin to grind, and sooner or later will likely grind exceeding fine. Jane and I draw lessons from WIRED's “expose” on three wrongful arrests based on face recognition software, but not the “face recognition is Evil” lesson WIRED wanted us to draw. The arrests do reflect less than perfect policing, and are a wrenching view of what it's like for an innocent man to face charges that aren't true. But it's unpersuasive to blame face recognition for mistakes that could have been avoided with a little more care by the cops. David and I highly recommend Brian Krebs's great series on what we can learn from leaked chat logs belonging to the Conti ransomware gang. What we learned from the Conti leaks. My favorite insight was the Conti member who said, when a company resisted paying to keep its files from being published, that “There is a journalist who will help intimidate them for 5 percent of the payout.” I suggest that our listeners crowdsource an effort to find journalists who might fit this description. It might not be hard; after all, how many journalists these days are breaking stories that dive deep into doxxed databases? Paul and I spend a little more time than it deserves on an ICANN paper about ways to block Russia from the network. But I am inspired to suggest that the country code .su—presumably all that's left of the Soviet Union—be permanently retired. I mean, really, does anyone respectable want it back? Jane gives a lick and a promise to the Open App Markets bill coming out of the Senate Judiciary Committee. I alert the American Civil Liberties Union to a shocking porcine privacy invasion. I discover that none of the other panelists is surprised that 15 percent of people have already had sex with a robot but all of them find the idea of falling in love with a robot preposterous. Download the 398th Episode (mp3) You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families or pets.
A special reminder that we will be doing episode 400 live on video and with audience participation on March 28, 2022 at noon Eastern daylight time. So mark your calendar and when the time comes, use this link to join the audience: https://riverside.fm/studio/the-cyberlaw-podcast-400 See you there! For the third week in a row, we lead with cyber and Russia's invasion of Ukraine. Paul Rosenzweig comments on the most surprising thing about social media's decoupling from Russia—how enthusiastically the industry is pursuing the separation. Facebook is allowing Ukrainians to threaten violence against Russian leadership and removing or fact checking Russian government and media posts. Not satisfied with this, the EU wants Google to remove Russia Today and Sputnik from search results. I ask why the U.S. can't take over Facebook and Twitter infrastructure to deliver the Voice of America to Facebook and Twitter users who've been cut off by their departure. Nobody likes that idea but me. Meanwhile, Paul notes that The Great Cyberwar that Wasn't could still make an appearance, citing Ciaran Martin's sober Lawfare piece. David Kris tells us that Congress has, after a few false starts, finally passed a cyber incident reporting bill, notwithstanding the Justice Department's over-the-top histrionics in opposition. I wonder if the bill, passed in haste due to the Ukraine conflict, should have had another round of edits, since it seems to lock in a leisurely reg-writing process that the Cybersecurity and Infrastructure Security Agency (CISA) can't cut short. Jane Bambauer and David unpack the first district court opinion considering the legal status of “geofence” warrants—where Google gradually releases more data about people whose phones were found near a crime scene when the crime was committed. It's a long opinion by Judge M. Hannah Lauck, but none of us finds it satisfying. As is often true, Orin Kerr's take is more persuasive than the court's. Next, Paul Rosenzweig digs into Biden's cryptocurrency executive order. It's not a nothingburger, he opines, but it is a process-burger, meaning that nothing will happen in the field for many months, but the interagency mill will begin to grind, and sooner or later will likely grind exceeding fine. Jane and I draw lessons from WIRED's “expose” on three wrongful arrests based on face recognition software, but not the “face recognition is Evil” lesson WIRED wanted us to draw. The arrests do reflect less than perfect policing, and are a wrenching view of what it's like for an innocent man to face charges that aren't true. But it's unpersuasive to blame face recognition for mistakes that could have been avoided with a little more care by the cops. David and I highly recommend Brian Krebs's great series on what we can learn from leaked chat logs belonging to the Conti ransomware gang. What we learned from the Conti leaks. My favorite insight was the Conti member who said, when a company resisted paying to keep its files from being published, that “There is a journalist who will help intimidate them for 5 percent of the payout.” I suggest that our listeners crowdsource an effort to find journalists who might fit this description. It might not be hard; after all, how many journalists these days are breaking stories that dive deep into doxxed databases? Paul and I spend a little more time than it deserves on an ICANN paper about ways to block Russia from the network. But I am inspired to suggest that the country code .su—presumably all that's left of the Soviet Union—be permanently retired. I mean, really, does anyone respectable want it back? Jane gives a lick and a promise to the Open App Markets bill coming out of the Senate Judiciary Committee. I alert the American Civil Liberties Union to a shocking porcine privacy invasion. I discover that none of the other panelists is surprised that 15 percent of people have already had sex with a robot but all of them find the idea of falling in love with a robot preposterous. Download the 398th Episode (mp3) You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families or pets.
Are geofence warrants running roughshod over the first and fourth amendments? Or are they an innocuous law enforcement tool that's really no constitutional violation at all? The BTLJ Podcast speaks with renowned constitutional law experts Erwin Chemerinsky and Orin Kerr to get some guidance. Hosted by Ben Brokesh, Chris Musachio, Hazim Alwazir, Hannah Brown, and Meg Sullivan. Produced by BTLJ Podcast Editors Isabel Jones and Seth Bertolucci and Senior Online Content Editors Thomas Horn and Karnik Hajjar
Late last month, Apple sued the Israeli technology firm NSO Group under the Computer Fraud and Abuse Act. That's the federal law that criminalizes computer hacking and provides a civil cause of action for hacking victims. NSO Group is primarily known for its Pegasus spyware software, which it provides to many governments for their law enforcement and national security investigations. Apple is suing NSO Group because many of the devices that Pegasus is used against are Apple iOS devices. Apple's lawsuit is just the latest in what has been several bad years for NSO Group, which has come under increasing scrutiny, most notably for the use of its software in the killing of Saudi journalist Jamal Khashoggi by the Saudi government, and for allegations that its products are used to commit a wide range of human rights abuses by authoritarian governments around the world. To talk through the merits of Apple's lawsuit, as well as its implications for the spyware industry and cybersecurity norms more generally, Alan Rozenshtein spoke with Orin Kerr, professor of law at the UC Berkeley School of Law, and Asaf Lubin associate professor of law at the Indiana University Maurer School of Law. Support this show http://supporter.acast.com/lawfare. See acast.com/privacy for privacy and opt-out information.
Wherein, esteemed law professor and man about Twitter Orin Kerr returns to the show to discuss the how and the why behind the dearth of 4th Amendment cases being heard by the Supreme Court this term. Our GDPR privacy policy was updated on August 8, 2022. Visit acast.com/privacy for more information.
On the first Pugilism Week, Orin Kerr takes on Scott Shapiro over their longstanding antagonism. Our GDPR privacy policy was updated on August 8, 2022. Visit acast.com/privacy for more information.
A spree of stories has emerged over the last week or so that the Justice Department under the prior administration obtained phone and email records of several journalists, several members of Congress and staffers, and even family members. It has provoked a mini scandal, calls for investigation, howls of rage and serious questions. To discuss it all, Benjamin Wittes sat down with Gabe Rottman of the Reporters Committee for Freedom of the Press, former FBI agent Pete Strzok, Lawfare senior editor Quinta Jurecic and Berkeley law professor and Lawfare contributing editor Orin Kerr. They talked about what we really know about these stories and what happened in these investigations. Was it all legal? Was it legitimate? How should it be investigated and by whom? And what does it mean that none of the prior attorneys general or deputy attorneys general seem to remember it? See acast.com/privacy for privacy and opt-out information.
On June 3, 2021 the Supreme Court decided Van Buren v. United States. The issue was whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.In a 6-3 opinion authored by Justice Barrett, the Court reversed the ruling of the Court of Appeals for the Eleventh Circuit and remanded the case. The Supreme Court held, “An individual ‘exceeds authorized access’ under the Computer Fraud and Abuse Act of 1986, 18 U.S.C. § 1030(a)(2), when he accesses a computer with authorization but then obtains information located in particular areas of the computer — such as files, folders or databases — that are off-limits to him..”Justice Thomas filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.Orin Kerr, Professor of Law at UC Berkeley Law, joins us today to discuss this decision and its implications.
For much of our nation’s history, courts asked whether government physically intruded on property to determine if it violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Supreme Court later adopted a standard looking at whether the government violated an individual’s “reasonable expectation of privacy.” But in recent years, the property-based approach has been making a comeback, most recently in Justice Neil Gorsuch’s dissent in Carpenter v. United States. Will the property-based approach knock out the reasonable expectation of privacy test? Tune in to find out! Special thanks to guests Orin Kerr, James, Stern, and Jamil Jaffer. Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal Send comments, questions, or ideas for future episodes to Dissed@pacificlegal.org See acast.com/privacy for privacy and opt-out information.
The famed Fourth Amendment scholar joins us to discuss his academic career, privacy and COVID-19, and a little bit of music. Our GDPR privacy policy was updated on August 8, 2022. Visit acast.com/privacy for more information.
Fearing that death or disability will remove Justice Stephen Breyer from the Supreme Court when a Republican is in the White House, progressives have begun urging the senior Democratic appointed justice to retire so that Joe Biden can nominate a younger successor while he has a chance. Is Justice Breyer likely to retire anytime soon? David Lat joins today’s show to give us his take. Stick around to hear David Lat and our hosts chat about Biden’s 36-person Supreme Court commission, a new opinion involving California pandemic law, Google v. Oracle, and lawful orders from police officers. Show Notes: -David Lat’s Substack: Original Jurisdiction, and novel: Supreme Ambitions -David Lat’s posts on Breyer: “Will Justice Breyer Retire? Reading The Clerk Hiring Tea Leaves” and “Confession Of Error: Justice Breyer Is Hired Up For October Term 2021” -Ritesh Tandon v. Gavin Newsom -Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark -Campbell v. Acuff-Rose Music, Inc. -Orin Kerr’s Twitter thread on lawful orders and Pennsylvania v Mimms -“A Tale of Two Rap Songs” by David French in The Dispatch See omnystudio.com/listener for privacy information.
Professor Orin Kerr stops by Supreme Myths to talk about searches and seizures, originalism, legal education, and the infamous US News Rankings.
https://news.gsu.edu/podcast/episode-29-professor-orin-kerr/ () Professor Orin Kerr stops by Supreme Myths to talk about searches and seizures, originalism, legal education and the infamous US News Rankings.
On November 30, 2020 the Supreme Court heard oral argument in Van Buren v. United States. The question before the court was whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.Orin Kerr is a Professor of Law at UC Berkeley School of Law and he joins us to discuss this case’s oral argument.
The case of Van Buren v. United States will have oral arguments before the Supreme Court on November 30, 2020. At issue is whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose. Prof. Orin Kerr joins us to discuss the case, the oral arguments, and its implications.Featuring:-- Prof. Orin Kerr, Professor of Law, UC Berkeley School of Law
Following the death of Justice Ruth Bader Ginsburg on Sept. 18, 2020, Berkeley Law professors — Amanda Tyler, Catherine Fisk, Orin Kerr, Bertrall Ross and Dean Erwin Chemerinsky — came together to discuss Ginsburg's legacy, what will be the likely effects of her no longer being in the Supreme Court and what is likely to happen in the nomination and confirmation process of a new justice."Her legacy as an advocate completely changed the face of American society," said Tyler, who clerked for Ginsburg in 1999. "As an advocate, she opened the eyes of the Supreme Court to the lived experiences of both men and women who are held back by gender stereotypes. Because of that, she was able to convince them, to educate them, to teach them as to how gender stereotypes do that, not just to women but to men as well, and how putting women on a pedestal, as Justice Brennan said, and Justice Ginsburg loved this quote, is actually putting them in a cage. It's holding them back."Read a transcript and listen on Berkeley News.Photo credit: Supreme Court of the United States via Flickr See acast.com/privacy for privacy and opt-out information.
This episode was recorded when Ron Steslow was host of The Lincoln Project Podcast (www.lincolnproject.us). He is no longer affiliated with the organization. This feed is now the home of Politicology. Our host and Lincoln Project co-founder Ron Steslow talks to co-founder Reed Galen, Lincoln Project Executive Director Sarah Lenti, and Orin Kerr, a professor at the University of California, Berkeley School of Law about the recent passing of Justice Ruth Bader Ginsburg, her legacy, and the impact a Supreme Court vacancy may have on the Presidential Election. They also discuss Trump refusing to commit to a peaceful transition of power after the Election.
This is the last episode of The Legal Academy, offering reflections about the season from the host, Orin Kerr.
Dave reviews an essay from top US officials on persistent engagement as US cyber doctrine, Ben describes the potential implications of a ruling on geofencing, and later in the show our conversation with Sean Brooks, Director of the Center for Long-Term Cybersecurity’s Citizen Clinic program on his recent report, "Digital Safety Technical Assistance at Scale." While this show covers legal topics, and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney. Links to stories: Orin Kerr via Twitter How to Compete in Cyberspace: Cyber Command’s New Approach Got a question you'd like us to answer on our show? You can send your audio file to caveat@thecyberwire.com or simply leave us a message at (410) 618-3720. Hope to hear from you. Thanks to our sponsor, KnowBe4.
Orin Kerr is a law professor and legal writer extraordinaire. He teaches at Berkeley. He writes widely, including on Twitter (@OrinKerr). With Jay, he talks about life and the law: judges, presidents, senators, pardons, and more. Also: How's life on campus? Free and easy or illiberal and hard? Orin Kerr is a natural teacher and interviewee. Source
Orin Kerr is a law professor and legal writer extraordinaire. He teaches at Berkeley. He writes widely, including on Twitter (@OrinKerr). With Jay, he talks about life and the law: judges, presidents, senators, pardons, and more. Also: How’s life on campus? Free and easy or illiberal and hard? Orin Kerr is a natural teacher and […]Sponsored by Gabi, Tommy John Join the conversation and comment on this podcast episode: https://ricochet.com/podcast/q-and-a/life-n-law-with-a-pro/.Now become a Ricochet member for only $5.00 a month! Join and see what you’ve been missing: https://ricochet.com/membership/.Subscribe to Q & A, Hosted by Jay Nordlinger in Apple Podcasts (and leave a 5-star review, please!), or by RSS feed. For all our podcasts in one place, subscribe to the Ricochet Audio Network Superfeed in Apple Podcasts or by RSS feed.
Encryption, once the domain of intelligence operatives, is now ubiquitous. Nearly every personal electronic device can now be encrypted with ciphers unbreakable by the most technologically advanced governments. This trend poses particular challenges to criminal investigations, such as when evidence is located on a suspect’s encrypted smartphone. So what about compelling the suspect to decrypt? The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself[.]" The Supreme Court's act of production doctrine says that certain compelled productions are a testimonial, and therefore cannot be used to incriminate the producer. However, the foregone conclusion doctrine allows compelled production when the information to be produced is already known to the government. Precisely how these doctrines apply to compelled decryption has yet to be settled. Federal appeals courts have expressed their opinions, and state supreme courts are considering the issue as well. This teleforum features two law professors who have debated the issue in academic publications and as amici. Featuring: Prof. Orin Kerr, University of California, Berkeley School of Law Prof. Laurent Sacharoff, Associate Professor of Law, University of Arkansas, Fayetteville
Encryption, once the domain of intelligence operatives, is now ubiquitous. Nearly every personal electronic device can now be encrypted with ciphers unbreakable by the most technologically advanced governments. This trend poses particular challenges to criminal investigations, such as when evidence is located on a suspect’s encrypted smartphone. So what about compelling the suspect to decrypt? The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself[.]" The Supreme Court's act of production doctrine says that certain compelled productions are a testimonial, and therefore cannot be used to incriminate the producer. However, the foregone conclusion doctrine allows compelled production when the information to be produced is already known to the government. Precisely how these doctrines apply to compelled decryption has yet to be settled. Federal appeals courts have expressed their opinions, and state supreme courts are considering the issue as well. This teleforum features two law professors who have debated the issue in academic publications and as amici. Featuring: Prof. Orin Kerr, University of California, Berkeley School of Law Prof. Laurent Sacharoff, Associate Professor of Law, University of Arkansas, Fayetteville
In this episode, Orin Kerr, Professor of Law at the University of California Berkeley School of Law, discusses his path into legal academia and offers advice for aspiring academics and junior scholars. Among other things, Kerr describes his early career and how his research has evolved over time. Kerr also offers advice on how to write and think effectively as a legal scholar, as well as some tips for teaching. Kerr is on Twitter at @OrinKerr.This episode was hosted by David A. Simon, Visiting Assistant Professor at the University of Kansas School of Law, and a Project Researcher at the Hanken School of Economics. Simon's scholarship is available on SSRN and he is on Twitter at @david_simon. See acast.com/privacy for privacy and opt-out information.
We begin this episode with a quick tour of the Apple antitrust decision that pitted two Trump appointees against each other in a 5-4 decision. Matthew Heiman and I consider the differences in judging styles that produced the split and the role that 25 years of “platform billionaires” may have played in the decision. Eric Emerson joins us for the first time to talk about the legal fallout from the latest tariff increases on Chinese products. Short version: Companies have some short-term tactics to explore (country of origin, drawback, valuation), but large importers and resellers have to grapple with larger and costlier strategies of supply chain diversification and localization. Meanwhile, China has not been taking the trade war lying down. In addition to its own tariff increases, it seems to be enforcing its demanding cybersecurity law more aggressively against foreign firms. I ask whether we are also seeing retaliation in Chinese courts as well. In related news, Nick Weaver and I debate the potentially sweeping new Executive Order on Securing the Information and Communications Technology and Services Supply Chain. Maury Shenk explains the UK Supreme Court ruling that expands the court's authority over the UK's intelligence agencies despite clear Parliamentary language to the contrary. Bottom line: Bad news for UK intelligence. Hidden good news for the U.S.: Turns out that there is something worse than activist judges interpreting a written constitution—activist judges who can more or less make up the constitution they want. It was a cybersecurity disaster week for some of the biggest names in tech. Nick helps me understand which bugs were worst, Cisco's, Intel's or Microsoft's. Then we review the equally bad week that the NSO Group and its WhatsApp exploit had. Cleaning up in a lightning round, we cover the order requiring the Chinese owner of Grindr to sell by mid-2020. We also cover Canada's approach to social media, which spurs me to praise France's Macron (!) for his moderation. The EU has a plan for sanctions on cyberattackers; Matthew and I doubt it will get much use. I think too much fuss is being made over leak investigators using Web bugs to see if defense counsel at Guantanamo have been leaking; Nick disagrees, at least a bit. And I close with yet another item in the long-running feature, “This Week in Internet Sex Toy Law.” Suffice it to say that the latest case can't be understood without consulting both Orin Kerr and Jerry Seinfeld. Download the 264th Episode (mp3). You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed! As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.
In this episode, Orin Kerr, Frances R. and John J. Duggan Distinguished Professor of Law at the University of Southern California Gould School of Law, discusses his article, "Implementing Carpenter," which is part of his forthcoming book The Digital Fourth Amendment. Kerr describes what happened in the paradigm-shifting Supreme Court case Carpenter v. United States (2018), and why it was such a departure from prior Fourth Amendment jurisprudence. He observes that there is considerable uncertainty about how Carpenter will apply in future cases, and discusses three potential approaches: subjective, mosaic, and source. He explains why the source approach is the only one that is workable, and reflects on where the Supreme Court's Fourth Amendment jurisprudence will go in the future. Kerr is on Twitter at @OrinKerr and blogs at The Volokh Conspiracy, among other places.Keywords: Fourth Amendment, CSLI, Cell-Site, Carpenter, Surveillance See acast.com/privacy for privacy and opt-out information.
The U.S. Supreme Court ruled in June that the government generally must have a warrant to gather location data from cellphones. The case followed an appeal filed by Timothy Carpenter after he was convicted for a series of armed robberies with help from cellphone data obtained by law enforcement without a warrant. Lawyers representing Carpenter asserted that his Fourth Amendment rights were violated, as the lack of a warrant constitutes as an unreasonable search and seizure. The case incited much reaction from both privacy and law enforcement advocates. But now that the dust has settled a bit, what can we take away from the case and how might this change the trajectory of digital surveillance policy in the U.S.? Prof. Orin Kerr of the University of Southern California School of Law and Jennifer Granick of the American Civil Liberties Union, discuss why the case is so significant and what it could mean for the future of digital surveillance, the third-party doctrine and how the Fourth Amendment applies. Kerr also weighs in on how this the nomination of Brett Kavanaugh to the Supreme Court might impact Fourth Amendment cases in the future.
On June 22, the Supreme Court released its long-awaited ruling in Carpenter v. United States, a case challenging whether law enforcement agencies need a search warrant to acquire the history of a cell phone's location from a wireless provider. Chief Justice John Roberts wrote for the five-justice majority that doing so amounts to a 4th Amendment search, a decision that will have far-reaching implications for law enforcement activities moving forward. On Thursday, Benjamin Wittes spoke on the phone with Jim Baker, the former general counsel of the FBI, and Orin Kerr, the 4th Amendment expert whose writing was cited in every dissent, to understand the decision. They talked about what the decision said, what a warrant for cell site data might look like, and the ruling's implications for other areas of 4th Amendment law.
In our 216th episode of The Cyberlaw Podcast Stewart Baker, Paul Rosenzweig, and Nicholas Weaver discuss: China’s tech challenge. ZTE – Trump’s first bailout: the shutdown, and the bailout. The National Defense Authorization Act 2019 may hit Chinese telecom equipment firms again. John Bolton may get rid of the cyber coordinator National Security Council position. Russia could have changed voter databases. US Court of Appeals for the Fourth Circuit decides to screw around with border search standards for phones – Orin Kerr weighs in. Will Iran return to widespread cyberattacks in the wake of the US withdrawal from the Joint Comprehensive Plan of Action? (With better tools than you might think: Recorded Future/Insikt on Iran’s semi-privatized hacking ecosystem.) Crowdstrike on the new sophistication of Nigerian scammers. Uber responds to pedestrian/autonomous vehicle collision with safety review; software flaw blamed for death. Tesla wisely keeps its trap shut (this week). The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.
The Washington Post reports this evening that: "Mueller told Trump’s attorneys the president remains under investigation but is not currently a criminal target." The report comes the same day as Alex van der Zwaan was sentenced to 30 days in jail for lying to Mueller's probe. On this emergency podcast, Benjamin Wittes is joined by Quinta Jurecic, Lawfare's deputy managing editor, who was in the courtroom for the van der Zwaan sentencing; Orin Kerr, a former federal prosecutor and the Duggan Distinguished Professor of Law at the University of Southern California; and Paul Rosenzweig, who served under Independent Counsel Kenneth Starr.
On Friday, Rep. Devin Nunes, the House intelligence committee chairman, released a controversial and long-awaited memo alleging surveillance abuses by the Justice Department and FBI against Carter Page, a former foreign policy adviser to the Trump campaign. In this special edition of the Lawfare Podcast, Quinta Jurecic, Orin Kerr, David Kris and Benjamin Wittes unpack the memo, its charges, and what those charges mean for the Mueller investigation and the future of surveillance oversight.
Former National Security Adviser Michael Flynn pleaded guilty today and agreed to cooperate with Special Counsel Robert Mueller. We put together an all-star panel to talk it through. Lawfare contributors Orin Kerr, Stewart Baker, Steve Vladeck, and Paul Rosenzweig joined Benjamin Wittes and Susan Hennessey to go over all the angles.
In this episode, Elizabeth & guest host John-Michael Seibler talk about the Court's recent orders and arguments, and they interview criminal law expert Orin Kerr about the cellphone case at SCOTUS. They also play Supreme Trivia - Fourth Amendment edition. See acast.com/privacy for privacy and opt-out information.
The Supreme Court heard oral arguments Wednesday in Carpenter v. United States, a major Fourth Amendment case asking whether a warrant is necessary before law enforcement can obtain cell site data identifying a suspect phone's location from a service provider. Lawfare contributor and Fourth Amendment expert Orin Kerr discussed the case with Benjamin Wittes shortly after the argument.
Alex Abdo of the Knight First Amendment Institute and Orin Kerr of George Washington Law debate whether warrantless searches and seizures of cellphone records violate the Fourth Amendment in a special podcast hosted at the National Press Club. In late November, the Supreme Court will tackle a very modern question about the venerable Fourth Amendment: Does it allow police to see where you’ve been for the past four months by looking at your cellphone data without a warrant? In Carpenter v. United States, which will be argued on November 29, cell number data placed a robbery suspect, Timothy Ivory Carpenter, near the scenes of several crimes, and at about the same time as those crimes happened. The phone information was used as evidence leading to Carpenter’s conviction on robbery charges and he is serving a long prison sentence. The Carpenter case has spurred a flurry of activity among Fourth Amendment scholars. Carpenter’s lawyers believe modern cellphone records are fundamentally different than traditional phone records cited in a 1979 Supreme Court decision at permits such searches without warrants. The U.S. Court of Appeals for the Sixth Circuit ruled against Carpenter and said the Fourth Amendment’s search warrant requirement only protects what was actually said in phone conversations. And it upheld a third-party doctrine that the phone records belong to the phone company, they aren’t private information. Note: Audio for this podcast was recorded at an October 26, 2017 live event at the National Press Club sponsored by the American Constitution Society and The Federalist Society and presented with the generous support of the Bernstein Family Foundation.
We returned this week to the annual Tech Law Institute meeting in Atlanta. We talk about data, law, and society: Joe and Christian's fight over data on the way to the conference, a new Supreme Court case involving cloud data and international boundaries, and the decisions that technology will force us to make. (Thanks to Jacob Davis for helping us provide written materials for the conference!) This show’s links: SCOTUSblog page on United States v. Microsoft (http://www.scotusblog.com/case-files/cases/united-states-v-microsoft-corp/) (including links to the petitions for cert and the Second Circuit's panel opinion) Paul Schwartz, Legal Access to Cloud Information: Data Shards, Data Localization, and Data Trusts (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3008392) The National Security Law Podcast 41: Han Shot First (https://nationalsecuritylawpodcast.com/episode-41-han-shot-first/) (featuring discussion of the United States v. Microsoft) Jennifer Daskal, There's No Good Decision in the Next Big Data Privacy Case (https://www.nytimes.com/2017/10/18/opinion/data-abroad-privacy-court.html?_r=0) SCOTUSblog page on Carpenter v. United States (http://www.scotusblog.com/case-files/cases/carpenter-v-united-states-2/) Oral Argument 42: Shotgun Aphasia (http://oralargument.org/42) (guest Orin Kerr) (discussing Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748222))
October 2nd will mark the first day of oral arguments for the 2017 Supreme Court term. The Court's docket already includes major cases involving Federal Courts, redistricting, the First Amendment, election law, business law, class actions, international and immigration issues, Alien Tort Statute, and the Fourth Amendment. -- The full list of cases granted thus far for the upcoming term can be viewed on SCOTUSblog here. The panelists will also discuss the current composition and the future of the Court. -- Featuring: Kyle Duncan, Schaerr Duncan, LLP; Prof. Samuel Estreicher, New York University School of Law; Prof. Orin Kerr, George Washington University Law School; Andrew Pincus, Mayer Brown, LLP; and Carrie Severino, Judicial Crisis Network. Moderator: Jan Crawford, CBS News.
October 2nd will mark the first day of oral arguments for the 2017 Supreme Court term. The Court's docket already includes major cases involving Federal Courts, redistricting, the First Amendment, election law, business law, class actions, international and immigration issues, Alien Tort Statute, and the Fourth Amendment. -- The full list of cases granted thus far for the upcoming term can be viewed on SCOTUSblog here. The panelists will also discuss the current composition and the future of the Court. -- Featuring: Kyle Duncan, Schaerr Duncan, LLP; Prof. Samuel Estreicher, New York University School of Law; Prof. Orin Kerr, George Washington University Law School; Andrew Pincus, Mayer Brown, LLP; and Carrie Severino, Judicial Crisis Network. Moderator: Jan Crawford, CBS News.
In June 2013, documents leaked by Edward Snowden sparked widespread debate about secret government surveillance of Americans. Just over a year later, the shooting of Michael Brown, a black teenager in Ferguson, Missouri, set off protests and triggered concern about militarization of law enforcement and discriminatory policing. In Unwarranted, Barry Friedman argues that these two seemingly disparate events are connected?and that the problem is not so much the policing agencies as it is the rest of us. We allow these agencies to operate in secret and to decide how to police us, rather than calling the shots ourselves. And the courts, which we depended upon to supervise policing, have let us down entirely. -- The book's author, Professor Barry Friedman, the Jacob D. Fuchsberg Professor of Law at New York University School of Law, Professor Orin Kerr the Fred C. Stevenson Research Professor of Law at The George Washington University Law School, and John Malcolm, Director and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies for the Heritage Foundation, joined us to discuss this new book. -- Featuring: Prof. Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law and Prof. Orin Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School. Moderator: John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation.
Orin Kerr, a professor at George Washington University Law School, discusses who should control access to information when law enforcement agencies ask services like Facebook and Google for access to their users’ information. He speaks with June Grasso and Michael Best on Bloomberg Radio's "Bloomberg Law."
Orin Kerr, a professor at George Washington University Law School, discusses who should control access to information when law enforcement agencies ask services like Facebook and Google for access to their users' information. He speaks with June Grasso and Michael Best on Bloomberg Radio's "Bloomberg Law." Learn more about your ad-choices at https://www.iheartpodcastnetwork.com
In our remote recording location and with returning election-law expert Lori Ringhand, we talk about the election. The electoral college, the moral and legal roles of electors, disputed elections in the House, crises, civil wars. Oh my. (Back in OA World Headquarters for next week’s show.) This show’s links: Lori Ringhand’s faculty profile (http://www.law.uga.edu/profile/lori-ringhand) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414) The Twelfth Amendment to the U.S. Constitution (http://avalon.law.yale.edu/18th_century/amend1.asp#12) (including a link to some superseding language of the Twentieth Amendment) Alexander Hamilton, Federalist No. 68 (http://avalon.law.yale.edu/18th_century/fed68.asp) Rick Hasen’s link to California’s brief against unbinding California’s Electors (http://electionlawblog.org/?p=89979) Geoffrey Stone, Electors Against Trump Are Faithful Not Faithless (http://time.com/4597387/faithless-electors-donald-trump/) Lawrence Lessig, The Constitution lets the electoral college choose the winner. They should choose Clinton. (https://www.washingtonpost.com/opinions/the-constitution-lets-the-electoral-college-choose-the-winner-they-should-choose-clinton/2016/11/24/0f431828-b0f7-11e6-8616-52b15787add0_story.html?utm_term=.a63723e54c11); Orin Kerr, The Electoral College Shouldn’t Choose Clinton: A Response to Lessig (https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/25/the-electoral-college-shouldnt-choose-clinton-a-response-to-lessig/?utm_term=.e20924ee8ab4); Lawrence Lessig, A Response to Professor Kerr (https://medium.com/equal-citizens/a-response-to-professor-kerr-657e3d9147d2#.320laj58w); Orin Kerr, A Reply to Professor Lessig on the Electoral College (https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/01/a-reply-to-professor-lessig-on-the-electoral-college/?utm_term=.3016b02fb393) Rick Hasen, Lessig Urges Faithless Electors Vote for Clinton, Pointing to Popular Vote in a Contest Not Based on Popular Vote (https://electionlawblog.org/?p=89486); Lawrence Lessig, Rick Hasen: “But Not to Ignore It…”: What Is “It”? (https://medium.com/equal-citizens/rick-hasen-but-not-to-ignore-it-what-is-it-59aaf4f0f0a3#.fxivalmbe); Mike Parsons, On “Hamilton Electors” and the Lessig/Hasen Debate (https://moderndemocracyblog.com/2016/12/03/on-hamilton-electors-and-the-lessighasen-debate/) Lawrence Lessig, The Equal Protection Argument Against “Winner Take All” in the Electoral College (http://billmoyers.com/story/equal-protection-argument-winner-take-electoral-college/); Lawrence Lessig, On the Equal Protect Clause Argument and the National Popular Vote Project (https://medium.com/equal-citizens/on-the-equal-protect-clause-argument-and-the-national-popular-vote-project-f4d75901151b#.kzkrq46f4) Dahlia Lithwick and David Cohen, Buck Up, Democrats, and Fight Like Republicans (http://www.nytimes.com/2016/12/14/opinion/buck-up-democrats-and-fight-like-republicans.html) David Corn, A Veteran Spy Has Given the FBI Information Alleging a Russian Operation to Cultivate Donald Trump (http://www.motherjones.com/politics/2016/10/veteran-spy-gave-fbi-info-alleging-russian-operation-cultivate-donald-trump) John Broich, How US Journalists Normalized the Rise of Hitler and Mussolini (http://www.pri.org/stories/2016-12-13/how-us-journalists-normalized-rise-hitler-and-mussolini-0) (citing Dorothy Thompson’s 1935 observation: “No people ever recognize their dictator in advance.”) Special Guest: Lori Ringhand.
In the days leading up to Election Day, conservative legal scholar Orin Kerr explained why he would be crossing the aisle to vote for a Democrat. On this episode, he tells us why the prospect of a President Trump frightened him so much, and what we can expect in the way of checks and balances on executive power for the next four years. We also speak with Garrett Epps, who wrote in The Atlantic this week that Trump is “a figure out of authoritarian politics, not the American tradition.” Epps observes that Trump has expressed contempt for nearly every article in the Bill of Rights, and deserves to be taken at his word. Transcripts of Amicus are available to Slate Plus members. Consider signing up today! Members get bonus segments, exclusive member-only podcasts, and more. Sign up for a free trial here. Amicus is brought to you by The Great Courses Plus, a video learning service with a large library of lectures all taught by award-winning professors. Get a free month of unlimited access when you sign up at TheGreatCoursesPlus.com/amicus. And by First Republic Bank. At First Republic, they take the time to know your business and customize solutions to help you reach your goals. Visit FirstRepublic.com today to hear what their clients say about them. Please let us know what you think of Amicus. Our email is amicus@slate.com. Follow us on Facebook here. Podcast production by Tony Field. Learn more about your ad choices. Visit megaphone.fm/adchoices
In the days leading up to Election Day, conservative legal scholar Orin Kerr explained why he would be crossing the aisle to vote for a Democrat. On this episode, he tells us why the prospect of a President Trump frightened him so much, and what we can expect in the way of checks and balances on executive power for the next four years. We also speak with Garrett Epps, who wrote in The Atlantic this week that Trump is “a figure out of authoritarian politics, not the American tradition.” Epps observes that Trump has expressed contempt for nearly every article in the Bill of Rights, and deserves to be taken at his word. Transcripts of Amicus are available to Slate Plus members. Consider signing up today! Members get bonus segments, exclusive member-only podcasts, and more. Sign up for a free trial here. Amicus is brought to you by The Great Courses Plus, a video learning service with a large library of lectures all taught by award-winning professors. Get a free month of unlimited access when you sign up at TheGreatCoursesPlus.com/amicus. And by First Republic Bank. At First Republic, they take the time to know your business and customize solutions to help you reach your goals. Visit FirstRepublic.com today to hear what their clients say about them. Please let us know what you think of Amicus. Our email is amicus@slate.com. Follow us on Facebook here. Podcast production by Tony Field. Learn more about your ad choices. Visit megaphone.fm/adchoices
In our 115th episode of the Steptoe Cyberlaw Podcast, Stewart Baker, Maury Shenk, and Kaitlin Cassel discuss: EU moves forward on US law enforcement data pact; Amazon is liable for in-app purchases by kids; HHS's new enforcement policy; UK government advises not to change passwords too often; App users get privacy lifeline in First Circuit Video Privacy Protection Act ruling; The government wants your fingerprint to unlock your phone. In our second half we discuss with GWU professor Orin Kerr a mandate from Congress that the FISA court review a regulation for compliance with an amendment that is usually invoked only in individual cases. The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.
We’re joined by tax scholar Daniel Hemel to discuss a puzzling problem. Why don’t presidents use their regulatory powers to affect tax law like they do to affect the law in many other areas? But before that, we talk about Christian’s birthday disappointment (0:01:15) and law reviews and the Bluebook (0:06:47). Then we talk Joe’s Oral Argument cruise proposal and segue to today’s topic (0:21:32), a president’s power to tax (0:27:19), an example of “carried interest” (the tax issue that flared up in the 2012 presidential campaign) (0:37:12), Daniel’s game-theoretic model and discussion of hawks, peacocks, debt ceilings, and presidential hand-offs (1:04:36). This show’s links: Daniel Hemel’s faculty profile and writing Oral Argument 91: Baby Blue (guest Chris Sprigman) Orin Kerr, A Theory of Law Christopher Cotropia and James Gibson, The Upside of Intellectual Property's Downside Daniel Hemel, The President’s Power to Tax (forthcoming so watch this space) The Joint Committee on Taxation’s Bluebooks U.S. Treasury’s Greenbooks National Muffler Dealers Ass’n v. United States Mayo Foundation for Medical Education and Research v. United States 26 U.S.C. sec. 385 Gregg Polsky, Can Treasury Overrule the Supreme Court? Victor Fleischer, Two and Twenty: Taxing Partnership Profits in Private Equity Funds Matthew Yglesias, Jeb Bush Wants You to Think He’d Raise Taxes on Hedge Fund Managers. He’d Actually Cut Them. (see the second section, Carried interest, explained) Victor Fleischer, Why Hedge Funds Don’t Worry About Carried Interest Tax Rules David Lebedoff, Why Doesn’t Obama End the Hedge Fund Tax Break? About the Pay-As-You-Go-Act of 2010 About hawk-dove games About Margaret Chase Smith Special Guest: Daniel Hemel.
Our main topic is fair use, the engine of so much cultural reuse and advancement. We’re joined by one of the doctrine’s most interesting scholars, Mike Madison. But the conversation spans: Joe’s telecomm cursing issues (0:00:36), FBiPhones and the Apple-FBI imbroglio (0:09:26), and fair use (0:28:27), including discussion of Mike’s Big Idea of social practices (0:53:03), reverse engineering, parody, video tapes, and much more. This show’s links: Mike Madison’s website, writing, and blog FCC v. Pacifica Foundation FCC v. Fox (Fox II) (containing a link to Fox I) This American Life 267: Propriety (It’s all good, but the discussion of the legal issue in Fox is at about 19:15.) Amy Davidson, The Dangerous All Writs Act Precedent in the Apple Encryption Case John Gruber, The Next Step in iPhone Impregnability Oral Argument 80: We’ll Do It LIVE! Oral Argument 42: Shotgun Aphasia (guest Orin Kerr) Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment Apple’s motion to vacate the order to assist the FBI Riley v. California (and see Orin Kerr’s post about the case shortly after it was decided About Fair Use Week Ty v. Publications Int’l (Judge Posner, giving an explanation of market substitution and fair use); see also Richard Posner, When Is Parody Fair Use? Suntrust Bank v. Houghton Mifflin Co. Key, lower-court cases deciding whether university course packets qualify for fair use protection: Basic Books Inc. v. Kinko’s Graphics Corp., Princeton Univ. v. Michigan Document Services, and, most recently, Cambridge University Press v. Patton David Fagundes, Market Harm, Market Help, and Fair Use Kickstarter page for Star Trek: Axanar, an independent Star Trek film (includes the twenty-minute video Prelude to Axanar) Ryan Reed, Crowdfunded 'Star Trek' Movie Facing Copyright Infringement Lawsuit; Eriq Gardner, 'Star Trek' Fans Want Paramount, CBS to Do Better Job Explaining Franchise to Court See also the unrelated and rather amazing Star Trek New Voyages, a nonprofit web series; and Paul Post, A ‘Star Trek’ Dream, Spread From Upstate New York A googol Statement of the Librarian of Congress Relating to Section 1201 Rulemaking; about anti-circumvention exemptions Electronic Frontier Foundation, Victory for Users: Librarian of Congress Renews and Expands Protections for Fair Uses Michael Madison, A Pattern-Oriented Approach to Fair Use Sony Corp. v. Universal City Studios Joel Hruska, How Sony’s Betamax Made YouTube and Twitch Possible Sega v. Accolade Frank Pasquale, Toward an Ecology of Intellectual Property: Lessons from Environmental Ecology for Valuing Copyright’s Commons Randy Picker, Closing the Xbox Sony Computer Entertainment v. Connectix Corp. MGM v. Grokster Jonathan Zittrain, The Generative Internet Horace Dediu, Seeing What’s Next (featuring a wonderful graph showing the adoption rates of various technologies, including the VCR); see also Derek Thompson, The 100-Year March of Technology in One Graph Eduardo Peñalver and Sonia Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (see also this article-length treatment) Eben Moglen, Freeing the Mind: Free Software and the Death of Proprietary Culture (“It is wrong to ask, ‘What is the incentive for people to create?’ It's an emergent property of connected human minds that they do create.”) Jennifer Rothman, The Questionable Use of Custom in Intellectual Property Michael Madison, Madisonian Fair Use Special Guest: Mike Madison.
Last week, George Washington University and the CIA co-hosted an event entitled Ethos and Profession of Intelligence. As part of the conference, Kenneth Wainstein moderated a conversation between CIA General Counsel Caroline Krass, Orin Kerr, and Benjamin Wittes on Bridging 20th Century Law and 21st Century Intelligence. What new legal questions are raised by rapidly evolving technologies and how do those questions interact with existing national security law? Can the United States strike a balance between privacy, security and the economic imperatives driving innovation? The panel addresses these critical issues and more.
We talk this week about elections and markets for votes with election-law scholar Kareem Crayton. Calling in from Hong Kong, where the design of elections looms large, Kareem chats with us about what elections are meant to do, the private and public nature of the voting booth, the practical legal immunity of decisions made for illegitimate reasons, comparisons of elections and other markets for products, racism, the Voting Rights Act, and more. Is racism more like polio or high blood pressure? This show’s links: Kareem Crayton’s writing Glossip v. Gross Michael Dorf, Evolving Standards of Decency that Mark the Progress of Maturing Justices Orin Kerr, Why the Late-Career Conversions at the Supreme Court on the Death Penalty? United States v. Quinones (Judge Rakoff’s district court opinion striking down the death penalty in 2002, later reversed) Josh Lee, Dignity Kennedy, Burkean Kennedy, and Libertarian Kennedy Josh Lee, Determinism and the Death Penalty Josh Lee, Judicial Abolition from Below BBC, Hong Kong’s Democracy Debate (an explainer) Arizona State Legislature v. Arizona Independent Redistricting Comm’n Giles v. Harris Romer v. Evans Busbee v. Smith (a 1982 decision containing finding of fact 17, that a Georgia representative was a racist) Shelby County v. Holder Brief of Political Science and Law Professors as Amici Curiae in Shelby County Kareem Crayton, Five Justices, Section 4, and Three Ways Forward in Voting Rights Kareem Crayton, Sword, Shield, and Compass: The Uses and Misuses of Racially Polarized Voting Studies in Voting Rights Enforcement Kareem Crayton, Take Down the Confederate Flag Special Guest: Kareem Crayton.
The National Constitution Center’s Jeffrey Rosen is joined by Orin Kerr and Christopher Slobogin to discuss another big Supreme Court decision about the Fourth Amendment and police dogs.
The National Constitution Center’s Jeffrey Rosen is joined by Orin Kerr and Christopher Slobogin to discuss another big Supreme Court decision about the Fourth Amendment and police dogs.
When should the police be able to search your phone, your computer, your email, or your dropbox? Orin Kerr thinks that over time, and in the face of changing technology and social practices, courts maintain a relatively consistent balance between privacy and the state’s interest in criminal investigation. The legal changes that maintain that consistency seem to be acceptable to originalists, pragmatists, and living constitutionalists alike. From cell phones to horses and buggies to automobiles and confidential informants. It’s the search episode. And then … yep, speed traps. Joe and Orin make a spiritual connection as non-warners. This show’s links: Orin Kerr’s faculty profile, writing, and blogging at the Volokh Conspiracy Background on the Fourth Amendment and the exceptions to the warrant requirement Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment Carroll v. United States and the automobile exception Ex Parte Jackson (one of the earliest Fourth Amendment decisions) Riley v. California (and see Orin’s post about the case shortly after it was decided Example undercover informant cases: On Lee v. United States and Lewis v. United States Keynote by Judge Richard Posner at the Empirical Legal Studies Conference Jacqueline Ross, Tradeoffs in Undercover Investigations: A Comparative Perspective John Mikhail on Universal Moral Grammar, on the excellent philosophy bites podcast Orin Kerr, The Curious History of Fourth Amendment Searches Orin Kerr, Foreword: Accounting for Technological Change United States v. Robinson Paul Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias United States v. Ganias Our first speed trap shows: Speed Trap and Party All Over the World Special Guest: Orin Kerr.
Orin Kerr argues that Congress should repeal the Electronic Communications Privacy Act of 1986 (18 USC 2510), which regulates government access to Internet records, and replace it with a new statute that reflects current technologies and addresses privacy threats. Speaker Biography: Orin S. Kerr is a tenured professor of law at George Washington University, where he teaches criminal law, criminal procedure and computer-crime law. The focus of his academic research has been on how new technologies change criminal law and criminal investigations. Kerr's work in this area has been cited in more than 70 judicial decisions, including the U.S. Supreme Court's January 2012 decision in United States v. Jones, on the constitutionality of the warrantless use of GPS monitoring. Kerr's articles have been published in many leading law reviews, including the Harvard Law Review and the Yale Law Journal. For more information, captions and transcripts, visit http://www.loc.gov/today/cyberlc/feature_wdesc.php?rec=6016
Benjamin Wittes, Steven Vladeck, and Orin Kerr debate NSA surveillance and the Snowden leaks at an event hosted by the George Washington University chapter of the Federalist Society.
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